(a) A proposer who participated in the CM/GC or PDB RFP process may protest the award of a CM/GC or PDB contract to the commissioner. The protest shall be submitted in writing within seven (7) calendar days after the proposer knows or should have known of the facts giving rise to the protest. In the case of a pending award, a stay of award may be requested. The commissioner or the commissioner’s designee has the authority to settle and resolve a protest.
Terms Used In Tennessee Code 54-1-505
Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Litigation: A case, controversy, or lawsuit. Participants (plaintiffs and defendants) in lawsuits are called litigants.
PDB: means a design-builder that is able to provide pre-construction services during the preliminary design and development phase of a transportation project, including, but not limited to, constructability review, scheduling, pricing, and phasing, and is able to complete the final design and construct the project if the department and the design-builder agree to a guaranteed maximum price. See Tennessee Code 54-1-502
Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form. See Tennessee Code 1-3-105
signed: includes a mark, the name being written near the mark and witnessed, or any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record, regardless of being witnessed. See Tennessee Code 1-3-105
State: when applied to the different parts of the United States, includes the District of Columbia and the several territories of the United States. See Tennessee Code 1-3-105
Writ of certiorari: An order issued by the Supreme Court directing the lower court to transmit records for a case for which it will hear on appeal.
written: includes printing, typewriting, engraving, lithography, and any other mode of representing words and letters. See Tennessee Code 1-3-105
(b) Upon receipt of the “notice of award” letter which will be sent to all proposers by email, facsimile or mail prior to awarding the contract to the recommended proposer, the proposers shall have seven (7) calendar days to review the procurement file and to file a protest. In no event shall any protest be allowed, however, more than seven (7) calendar days after the proposer knew or should have known of the facts giving rise to the protest. If no protest letter with a protest bond is received in accordance with the requirements described in this subsection (b), then the department shall proceed with the award. The protest procedures and protest bond requirements are as follows:
(1) The protester shall deliver by mail or hand delivery an original protest letter, manually signed in ink, with a protest bond to the commissioner within seven (7) calendar days after the proposer knew or should have known of the facts giving rise to the protest. The protest letter shall include the solicitation number, the reason or reasons for the protest, and the signature of an attorney or protesting party indicating that the signer has read the document, and that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, limit competition, or to cause unnecessary delay or needless increase in the cost of the procurement or of the litigation;(2) The protest, and any review or appeal thereof, shall be based exclusively on the writtenrecord of the CM/GC or PDB procurement process described in § 54-1-504(b)(2) and (3), unless there are specific factual allegations that, in the course of evaluating or scoring the proposals, the selection committee or a member thereof has engaged in unlawful conduct or conduct so arbitrary and capricious as to amount to an illegality, in which case evidence outside the written record may be submitted;(3) The protest bond shall be in the amount of two percent (2%) of the department’s estimate of the total project cost;(4) If the protest is not resolved by mutual agreement, the protester may request that the matter be considered at a meeting with the state protest committee created in § 4-56-103. The protester shall be required to submit a letter of appeal to the commissioner of general services and the commissioner of transportation requesting a meeting with the state protest committee within seven (7) calendar days from the date of the final determination letter provided by the commissioner or the commissioner’s designee. In the event that a letter of appeal is not received within the seven (7) calendar days, the department shall proceed with an award;(5) If the protester submits a letter of appeal to the state protest committee within the seven (7) calendar days, the state protest committee shall hold a protest meeting and make a final determination in writing to the protester and the commissioner;(6) The department shall hold the protest bond for at least eleven (11) calendar days after the date of the final determination by the commissioner or the commissioner’s designee. If the protester appeals the commissioner’s final determination to the state protest committee, the protest bond shall be held until the commissioner is instructed by the state protest committee to either keep the bond or return it to the protester. The protester shall be notified in writing of the decision to keep the protest bond or shall be sent the protest bond by certified mail; provided, however, that the bond may only be retained if the commissioner determines that there is substantial evidence in the record to establish that the protest was brought or pursued in bad faith, or that the protest does not state on its face a valid basis for protest;(7) A decision rendered by the state protest committee may be appealed by filing a petition for a writ of certiorari with the Chancery Court of Davidson County within sixty (60) days of the state protest committee’s final decision.
